THE SUE-AND-SETTLE PHENOMENON: ITS IMPACT ON THE LAW, AGENCY, AND SOCIETY

 In Public Lands

by Katie L. Colton

The Thesis Series is a collection of Master’s Theses written by students whose work explores themes complementary to Strata’s focus. Each thesis was submitted in partial fulfillment of the requirements for a graduate degree at the student’s university. Each was approved by a faculty committee in the student’s academic department. The views expressed in each thesis are of the author and do not necessarily reflect the official position of any agency, organization, employer, or company

Copyright © Katie Colton 2018

All Rights Reserved

ABSTRACT

Sue-and-settle is the name applied to a federal agency’s use of litigation to create policy outside of the normal regulatory process. This paper discusses the impact that the sue-and-settle policy has had on Congress, the judiciary, and the Environmental Protection Agency. Specifically, this paper will discuss the issues caused by the perception of collusion within the sue-and-settle policy. First, this paper examines whether a relationship occurs between the litigants. The paper then discusses whether the relationship between the litigants in sue-and-settle cases tends to be collusive or not. The second part of the paper examines how Congress, the Environmental Protection Agency, and the judiciary are viewed because of the continued perception of collusion in the agency’s settlements. Overall, this paper finds that, the impacts of the sue-and-settle policy, and the perception of collusion, has affected Congress, the Environmental Protection Agency, and the judiciary by increasing regulation, distorting the purpose of the courts, and resulting in a lost value for the regulatory process.